Currently, AT&T and other telecoms are being sued for allegedly allowing federal authorities to tap phone lines without warrants.
Since wiretapping without a warrant is illegal and seems to be a clear violation of various legal rights there seems to be excellent ground for suing these telecoms. In their defense, the telecoms’ lawyers are claiming that they acted in good faith and hence should not be subject to such law suits. The Bush administration, seemingly devoted to violating the law whenever it can, agrees with the companies.
On one hand, there are good grounds to agree with the telecoms. After all, if they were pressured by the federal government, then they could be regarded as having little choice in the matter. After all, everyone is expected to conform to the dictates of the state and to do otherwise could be regarded as to be acting in a lawless manner. Further, the state can apply a great deal of pressure to get its way and the telecoms would have to go along. Finally, the telecoms could claim that they were cooperating with the war on terror and believed they were doing the right thing.
On the other hand, the telecoms are big companies who possess legions of lawyers. These folks surely understand the law and the consequences of breaking it. Further, these telecoms have armies of lobbyists and significant influence. This would enable them to resist being pushed around by the federal authorities. After all, big companies influence the state all the time. Further, it is quite possible to resist such illegal requests. Qwest did it and they seem to have suffered no ill effects. As such, there seems to be little justification for the actions of the companies in going along with illegal wiretapping requests.
Turning now to the Bush administration, it was clearly wrong of them to request such wiretaps without going through due process. America prides itself as a country based on law and ethics. To simply disregard the law in such a manner is not only an illegal act, but an expression of pure contempt for the basic principles that are considered the foundation of the United States.
What makes the matter even worse is that the legal mechanisms were already in place to do what Bush and his fellows wanted to do. They could have simply asked for warrants and they would have almost certainly been granted. The fact that the administration could not be bothered to go through such a process to get what it wanted serves to illuminate even more their attitude towards the law and due process. Like someone who lies when the truth would serve as well or better, the Bush administration members seem to have a pathological condition in regards to due process and ethics.
Of course, the Bush administration’s members are not the only players in this game. The Senate and House are playing as well.
The Senate Select Committee on Intelligence currently claims that the telecoms involved should be granted retroactive immunity. The committee members base their claim on the following line of reasoning:
1. By law, the telecoms have protection from lawsuits in regards to wiretapping when either they are given a legal warrant or the attorney general certifies the action.
2. The Bush administration, as it so often does, has classified any documents it “may or may not” have provided the telecoms as state secrets.
3. Since the documents are secret, the telecoms cannot show these (alleged) documents in court and thus cannot mount a proper legal defense.
4. Therefore, says the committee members, the telecoms must be granted immunity.
On the face of it, their logic has a certain appeal. It would be unjust to convict anyone when they cannot provide key evidence in their defense because it has been ruled a state secret.
Of course, I am rather suspicious of the state secret gambit. Rather than saying that warrants exist, the committee simply seems to be saying that if there were warrants, then they could not show them. So, even if there were not warrants, then they cannot be sued. While I do appreciate clever maneuvers, this hardly seems to justify granting the telecoms immunity to prosecution. If there are warrants, then the administration can simply make this fact non-secret. The telecoms can thus have their defense. If there are no warrants, then the telecoms acted illegally and should be punished. Since they seem to have been pressured to commit such illegal actions, then those who pressured them should also be subject to prosecution.
It might be replied that the warrants must remain secret to protect the state in some manner. I do understand that they might not wish to reveal exactly who was being spied on. After all, those people might still be under surveilance and they might actually be terrorists. However, revealing that warrants were issued hardly seems to be something that would harm the state. Of course, if it were revealed that wiretapping took place without warrants, then this would hurt the administration and the telecoms by revealing that they acted illegally. But, of course, the legitimate purpose of state secrets is not to protect people from their violations of the law.
The House has proposed an alternative approach to the matter. Their solution seems to be a fairly reasonable compromise. To appease those devoted to state secrets, the plan is that relevant documents can be presented in secret before a judge with none of the plaintiffs being present. The judge would presumably assess the documents and determine whether the documents show that the wiretapping was illegal or legal. If the judge decides that the wiretapping was done properly, then the telecoms would have a strong legal defense. If not, they would be in some trouble.
While this is better than the senate’s solution, it still keeps an important matter cloaked in secrecy. This is, of course, quite contrary to the ideals of an open, democratic state.
I suspect, but obviously cannot prove, that the secret documents do not show that the telecoms acted in a legal manner. If everything was above board, then there would be no reason to cloak the matter in the stinking shadows of government secrecy. If everything were on the up and up, the relevant information about the warrants would be available and the matter would be settled.